What would a Yes vote mean for ad regulation?

In less than two weeks we will know the outcome of the Scottish referendum on independence. Recent polls suggest that it is going to be a tighter race to the finish line than any political pundit or pollster has predicted.

Much of the debate between the Yes and No campaigns has centred on their legislative plans on tax, the health service, defence and the economy. Consequently, there is less known about the plans for the regulation of advertising.

However, it appears likely the Advertising Standards Authority will perform the same function in Scotland post independence as it does currently for Scottish consumers within the UK.

The likely scenario is that the proposed economic and competition regulator, which will continue to perform some of the functions Ofcom does in terms of oversight of media content, would licence responsibility for maintaining advertising standards and writing advertising codes to the ASA and the Broadcast Committee of Advertising Practice respectively, as Ofcom does now.

It is probable that the ASA would continue to carry out its remit for non-broadcast advertising too.

The alternative is that an independent Scotland would establish a new independent body, either a statutory executive body funded by Government or its own ASA, independent but funded by a levy on the advertising industry.

Both seem unlikely though. A written answer to a question posed by Scottish MP in December 2013. In response to a question on whether the SNP had consulted on setting up a separate regulator, the minister for culture and external affairs Fiona Hyslop said: “ Advertising is self regulated by the industry through the Advertising Standards Authority. Independence need make no difference to this.”

A spokesman for the SNP suggested the same: ”It is more than likely that the ASA will have a similar relationship with future Scottish regulatory bodies as it does now with Ofcom”.

The ASA remains cautious over the matter. A spokesman for the ASA says: “We’re in ‘wait and see’ mode. Amongst the innumerable questions that a vote for independence would raise, I don’t think we can say with any kind of certainty or confidence what it might mean for ad regulation in Scotland.”

Ofcom is also open to all possibilities: “We will, of course, continue to work with both governments as we always have, and we will continue to be open in providing information about how the sectors we regulate work”.

Elsewhere, food and payday loan advertising look set for further restrictions. It is not explicit what the SNP’s plans for advertising are except that its approach will be co-ordinated. In its 2013 document laying out its vision for an independent Scotland, the SNP said its approach to food standards will be linked with tax policy and advertising regulation – “allowing a coherent and concerted approach to issues of obesity and poor diet, which disproportionately affect poorer communities.” A declaration that will be interpreted as opening up the possibility of further restrictions on the content and scheduling of advertising.

Previous actions suggest a more hard-line approach than those demonstrated by Westminster politicians to date. In 2012, public health minister Michael Matheson called for a ban on all HSSF foods before the 9pm watershed to protect children.

Further restrictions on the advertising of payday lending were also promised although there is scant detail in the document as to how that might manifest itself.

Brinsley Dresden partner at law firm LewisSikin specialising in advertising, says such positions and the lead the SNP took on minimum pricing for alcohol indicate a willingness to get tough.

“They [Scottish Parliamentarians] appear to be more inclined to take a stricter line. The centre of gravity is slightly to the left.”

Ian Barber, communications director at the Advertising Association says it will continue to press home the case for advertising whatever the outcome of the referendum: “The SNP sees no reason to abandon self-regulation – but has also been quick to call for ad-bans in the past. That’s why it’s so important to take the case for advertising to Holyrood, no matter how Scotland votes.”

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